FRANCES HOLDSWORTH and AUSTRALIAN POSTAL CORPORATION
[2009] AATA 59
•28 January 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 59
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600108
GENERAL ADMINISTRATIVE DIVISION ) Re FRANCES HOLDSWORTH Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr P A Staer, MemberDate28 January 2009
PlacePerth
Decision The Tribunal affirms the decision under review ..........[sgd S D Hotop].......
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant employed by respondent as postal delivery officer – applicant alleged to have breached respondent’s Code of Ethics – informal counselling undertaken – Disciplinary Inquiry instituted – Disciplinary Inquiry Report recommended that applicant be transferred – delegate decided to transfer applicant – applicant suffered mental ailment involving anxiety and depression – applicant’s mental ailment contributed to in material degree by employment – applicant suffered mental ailment as result of transfer decision – Disciplinary Inquiry and transfer decision reasonable disciplinary action taken against applicant – applicant’s mental ailment not a compensable injury – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth), s4(1), s7(4) and s14(1)
Boral Resources (Queensland) Pty Ltd v Pyke (1989) 93 ALR 89
Comcare v Eames (2008) 47 AAR 505
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75
Hart v Comcare (2005) 145 FCR 29
REASONS FOR DECISION
28 January 2009 Deputy President S D Hotop
Dr P A Staer, MemberIntroduction
1. Frances Holdsworth (“the applicant”), who was at all material times employed by Australian Postal Corporation (“Australia Post”) (“the respondent”), made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) on 22 September 2005 for an illness described as “depression, anxiety” as a result of “prolonged stress and being falsely accused of misconduct and unreasonable disciplinary action”.
2. On 2 November 2005 a delegate of the respondent made a determination that the respondent was not liable under the SRC Act to pay compensation to the applicant.
3. Following a request on 29 November 2005 by the applicant’s solicitors to the respondent for a reconsideration of the abovementioned determination, another delegate of the respondent made a “reviewable decision” on 13 February 2006 affirming that determination.
4. On 13 April 2006 the applicant made an application to the Tribunal for review of the abovementioned reviewable decision.
The Relevant Legislation
5. The relevant provisions of the SRC Act (as in force at all material times) are as follows:
“4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
…impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
7 Provisions relating to diseases
…
(4)For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
…
14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…”
Section 16 of the SRC Act provides for the payment of compensation for the cost of reasonable medical treatment obtained by an employee in relation to an injury, and s 19 of that Act provides for the payment of compensation to an employee who is incapacitated for work as a result of an injury.
The Evidence
6. The evidence before the Tribunal comprised:
· the “T Documents” (T1–T63, pp 1–477) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· Exhibits A1–A6 tendered by the applicant;
· Exhibits R1–R22 tendered by the respondent;
· the oral evidence of the applicant and of the following witnesses:
-Dr John Miller, Mark Holdsworth and a former work colleague of the applicant (who were called by the applicant); and
-Dr Lawrence Terace, Mark Butterworth, Anthony Beck, Debra Payne, Michael Owen, Richard Brooks, William Newnham, Anthony Middleton, and four former work colleagues of the applicant (who were called by the respondent).
The Factual Background
7. The applicant has been the subject of two Disciplinary Inquiries instituted by the respondent under its Employee Counselling and Discipline Policy and Procedures (see paragraph 27 below).
The first Disciplinary Inquiry
8. By letter dated 1 September 2004 the applicant was formally notified that an Inquiry would be held into allegations that she had “breached the Australia Post Code of Ethics”. That formal notification informed the applicant as follows:
“ The alleged breaches that will be the subject of the Inquiry are that you:
1.Failed to treat everyone with courtesy, patience and respect causing disadvantage, discomfort or embarrassment to fellow employees.
Particulars:
1.1On Monday 16.8.2004 you did deliberately drop a container of mail from a height that caused it to make a loud bang on hitting the floor. You did this behind Postal Delivery Officer … who could not have seen what was going to happen causing her to be frightened and embarrassed by this action. After witnessing the reaction of Ms … you and fellow Postal Delivery Officer … did snigger and giggle at Ms …’s reaction and the discomfort caused to her.
1.2When walking behind some members of the Night Shift team including Ms … you do regularly make odd and immature noises in your throat and make comments like ‘we are now standing in the no fun zone’ or ‘no personality people’ and ‘having their lip dragging on the ground’.
1.3When removing mail from the sorting frames of some team members you do not show them politeness and respect in that you display the behaviour described in 1.2 above and by reaching into their frame without informing them of your intention.
1.4Deliberately treating some members of the Night Shift team differently causing them to feel unwelcome or not a part of the team. This includes talking openly and in a loud voice to selected team members in the presence of others.
1.5You do regularly place mail upside down and back to front in mail trays for those Postal Delivery Officers that you have issues with and those that they associate with. This conduct is not consistent with standard operating procedures.
1.6The behaviours referred to in 1.2 to 1.5 above are not directed at all of your work colleagues, and show signs of specifically targeting some colleagues with whom you have a particular issue, and others with whom they associate.
2. Engaged in conduct that intimidates and offends other employees.
Particulars:
2.1 As set out in Particular 1.1 to 1.6 above.
3.Failed to consistently perform work to an agreed or prescribed standard or higher.
Particulars:
3.1As set out in Particular 1.5 above.
3.2During the week ending 20.8.2004 when the regular Night Shift Supervisor was absent on sick leave you were observed by your peers to slow down your work rate and engage in conversation not relevant to your work with Ms … This resulted in your peers having to unnecessarily perform additional work.
4.Failed to observe a lawful direction.
4.1.During your shift ending 24.8.2004 you and Ms … did change from casual shoes to safety shoes when the Night Shift Supervisor was working on the loading dock. This conduct was contrary to an oral direction issued to you by the Night Shift Supervisor on 24.6.2004 and re-iterated at the team brief of 25.6.2004 that you were to change your shoes during your own time.
…
If the alleged breaches are proven, the Inquiry Officer may recommend to the Authorised Officer (State Operations Manager, Mail and Networks Division) that you be:
·Dismissed;
·Transferred to another position or location at the same or lower level;
·Reduced two increments for a period of 12 months (or equivalent monetary penalty); or
·Counselled.
…” (T23)
9. The Inquiry Officer, Mark Butterworth, subsequently interviewed the applicant and 13 other Australia Post staff members in the period 15 September – 8 October 2004. (T27)
10. In his “Report on Code of Ethics Inquiry – Frances Holdsworth”, dated 21 December 2004, Mr Butterworth stated his findings as follows:
“Findings
1. Failed to treat everyone with courtesy, patience and respect causing disadvantage, discomfort or embarrassment to fellow employees.
1.1 Particulars:
On Monday 16.8.04 after Postal Delivery Officer Frances Holdsworth did deliberately drop a container of mail from a height behind Postal Delivery Officer … that you did join Ms … in sniggering and giggling at Ms …’s reaction and the discomfort caused to her.
Finding:
This alleged incident was not reported at the time and there were no witnesses. The allegation cannot be substantiated. – NOT PROVEN
1.2 Particulars:
When walking behind some members of the Night Shift team including Ms … you do regularly make odd and immature noises in your throat and make comments like ‘we are standing in the no fun zone’ or ‘no personality people’ and ‘having their lip dragging on the ground’. When questioned by the Night Shift Supervisor you deny that you are talking about these work colleagues.
Finding:
According to Ms … incidents involving the alleged ‘comments’ and ‘throat noises’ occurred on 17.8.2004 and 18.8. 2004 respectively. Ms … did not report them to the Team Leader or Delivery Manager at the time and there were no witnesses to them. However, the allegation as detailed in the Notification of Inquiry letter was that Ms Holdsworth regularly made the noises and comments and was not specific to an incident. A number of the Night Shift staff interviewed did state at interview that they had heard Ms Holdsworth and Ms … make the alleged ‘throat noises’ and ‘belittling comments’ on many other occasions over the preceding 15 months. Given the number of other Night Shift staff who have heard Ms Holdsworth conduct herself in the alleged manner, on the balance of probability this allegation is PROVEN.
1.3 Particulars:
When removing mail from the sorting frames of some team members you do not show them politeness and respect in that you display the behaviour described in 1.2 above and by reaching into their frame without informing them of your intention.
Finding:
This alleged behaviour, which involved Ms …, was not reported at the time and there were no witnesses. The allegation cannot be substantiated. – NOT PROVEN
1.4 Particulars:
Deliberately treating some members of the Night Shift team differently causing them to feel unwelcome or not a part of the team. This includes talking openly and in a loud voice to selected team members in the presence of others.
Finding:
This allegation as detailed in the Notification of Inquiry letter was not specific to an incident. There are many witnesses who have stated that they are treated differently by Ms Holdsworth in this way. Given this, on the balance of probability this allegation is PROVEN.
1.5 Particulars:
You do regularly place mail upside down and back to front in mail trays for those Postal Delivery Officers that you have issues with and those that they associate with. This conduct is not consistent with standard operating procedures.
Finding:
The only incident of this nature identified by my investigations occurred over 9 months ago and related to a Postal Delivery Officer who no longer works for Australia Post. There was no evidence presented by those interviewed to suggest that this sort of conduct occurs on a regular basis. The only behaviour relevant to this allegation occurred too long ago and cannot be substantiated. NOT PROVEN
1.6 Particulars:
The behaviours referred to in 1.2 to 1.5 above are not directed at all of your work colleagues, and show signs of specifically targeting some colleagues with whom you have a particular issue, and others with whom they associate.
Finding:
This allegation is not specific to an incident. There is no doubt in my mind based on the evidence presented by those interviewed that some individual staff members are being treated differently and with less respect than others by Ms Holdsworth. PROVEN
2. Engaged in conduct that intimidates and offends other employees.
2.1 Particulars:
As set out in Particular 1.1 to 1.6 above.
Finding:
The evidence presented by those interviewed clearly indicates that the conduct displayed by Ms Holdsworth in the workplace and referred to in Particulars / Findings 1.2, 1.4 and 1.6 both intimidated and/or offended not only Ms …, but other Night Shift team members even though they might have decided not to report the conduct at the time. It is pertinent to mention that both Ms Holdsworth and Ms … appear to be very deliberate and calculated in their actions towards other employees, which amounts to intimidation and harassment within the workplace. PROVEN
3.Failed to consistently perform work to an agreed or prescribed standard or higher.
3.1 Particulars:
As set out in Particular 1.5 above.
Finding:
As mentioned in Finding 1.5 above my investigations found that this conduct was restricted to an isolated incident that occurred some time ago, rather than recent or regular occurrences. This allegation cannot be substantiated. NOT PROVEN
3.2 Particulars:
During the week ending 20.8.2004 when the regular Night Shift Supervisor was absent on sick leave you were observed by your peers to slow down your work rate and engage in conversation not relevant to your work with Ms … This resulted in your peers having to unnecessarily perform additional work.
Finding:
This allegation as detailed in the Notification of Inquiry letter was reported to the Team Leader. The Team Leader spoke to Ms Holdsworth at the time and requested that she resume her work and engage in less chat. In addition, there are many witnesses who have stated Ms Holdsworth and Ms … regularly slow down their work during the supervisor’s absence. On the balance of probability I find this allegation PROVEN.
4. Failed to observe a lawful direction.
4.1 Particulars:
During your shift ending 20.8.04 (sic) you and Ms … did change from casual shoes to safety shoes when the Night Shift Supervisor was working on the loading dock. This conduct was contrary to an oral direction issued to you by the Night Shift Supervisor on 24.6.04 and re-iterated at the team brief of 25.6.04 that you were to change your shoes during your own time.
Finding:
This allegation as detailed in the Notification of Inquiry letter was reported to the Team Leader. The Team Leader had previously implemented and communicated an office policy that required safety shoes to be changed outside work-time. This policy was well known by all staff including Ms Holdsworth and Ms …. In addition, there are many witnesses who have stated Ms Holdsworth and Ms ... regularly change into their safety shoes during work-time and in breach of the office policy. On the balance of probability I find this allegation PROVEN.”
Mr Butterworth's report concluded as follows:
“ 7.Prior Current Breaches of the Code of Ethics:
Ms Holdsworth has not been the subject of any formal action under the Australia Post Employee Counselling and Discipline Process. She has however been informally counselled on a number of occasions in relation to her conduct in the workplace.
8.Recommendation
It is recommended that Ms Holdsworth be:
·TRANSFERRED TO ANOTHER LOCATION AT THE SAME LEVEL WITH AN EQUIVALENT NUMBER OF WEEKLY HOURS.
9.Reasons for recommendation
The conduct displayed by Ms Holdsworth in the workplace is clearly unacceptable and is contributing to the undermining of the effectiveness and staff morale of the Night Shift group. It is conduct which has had and continues to have serious consequences in the workplace. Furthermore, the behaviour displayed is not what you would expect from a mature woman. Particularly after the investigation conducted in July 2003 and the steps taken at the time and since then to ensure that all Night Shift staff have a clear understanding of their responsibilities and what is expected of them in the workplace in respect of both the Code of Ethics and Harassment Policy.
Given that the mediation and briefing sessions have failed to achieve a change in behaviour as evidenced by Ms Holdsworth continuing to forego her personal responsibility for conducting herself in an acceptable manner in the workplace, it is critical that Australia Post deals with this now. In the circumstances Australia Post is left with no other alternative than to take formal action under the Australia Post Employee Counselling and Discipline Process. In reaching the recommendation that Ms Holdsworth be transferred to another Delivery Centre/Facility I have given careful consideration to the options available to me.
Summarised:
·Dismissal or a two increment reduction for 12 months was considered too harsh given that there has been no prior formal action taken under the Australia Post Employee Counselling and Discipline Process.
·A formal or warning counselling is considered inappropriate because Ms Holdsworth does not recognise the seriousness of the breaches and there (sic) ongoing nature. Nor does she accept personal responsibility for her actions. Similarly it means that all parties would remain in the same workplace making it difficult for both the Team Leader and Delivery Manager to manage the group and the team dynamics. Furthermore it is most unlikely, based on past experiences that if Ms Holdsworth was to receive a warning counselling and remain at Nedlands that she would cease conducting herself in the manner that she has demonstrated in the workplace for some time.
·Transfer is considered the only real option because it effectively separates the parties involved in the conflict and sends a clear message to all parties and for that matter the whole of the Night Shift group that conduct of this nature is unacceptable in the workplace. Neither should it be tolerated.” (T26)
11. Mr Butterworth sent a copy of his report to the applicant under cover of a letter dated 21 December 2004 whereby she was informed that the Report had been submitted to Mr Mike Owen, State Operations Manager, Mail and Networks Division for his consideration and that she might forward a written statement to him or seek a meeting with him. (T28)
12. By letter dated 21 December 2004 the applicant informed Mr Owen that she wished to meet with him “to discuss the alleged breaches of the Australia Post Code of Ethics”. (T29)
13. By letter dated 23 December 2004 Mr Butterworth (on behalf of Mr Owen) informed the applicant that she was “required to attend an Inquiry interview with Mr Mike Owen” on 5 January 2005 at which she would be “given the opportunity to respond to the findings and recommendations made against [her] as set out in the notification of Inquiry Recommendation letter dated 21 December 2004”. (T30)
14. On 24 December 2004 the applicant wrote to Mr Owen as follows:
“Thank you for the meeting you have arranged on the Wednesday 5th January 2005. I would like to request a copy of the full allegations and any relevant documentation pertaining to these alleged breaches. I have previously requested these by phone to the original inquiry officer Ms Anna Mora on the 2.9.04 and again to the new inquiry officer Mr Mark Butterworth on the 10.9.04 and again at the first and only interview with Mr Mark Butterworth on the 24.9.04.
I would also request a copy of all relevant information ie witnesses, documentation, evidence that assisted Mr Butterworth in his findings.
I require this information before our scheduled meeting on the 5th January 2005 because even though Mr Butterworth has completed his recommendation I still do not understand these allegations. In the interest of fair play and natural justice I therefore request them at your earliest convenience.
I believe the documentation to date supplied to me only to be a broad outline rather than the full detailed allegations and also there seems to be some inconsistencies.
Due to the lack of time afforded me to respond and attend this meeting I would appreciate that this request is dealt with expeditiously, as you can appreciate this is causing me undue stress.” (T31)
15. Following her meeting with Mr Owen on 5 January 2005 the applicant wrote a long letter (comprising 11 typewritten pages), dated 17 January 2005, to Mr Owen criticising Mr Butterworth’s conduct of the Disciplinary Inquiry, the adverse findings made by him, and his recommendation that she be transferred. (T35)
16. On 2 March 2005 Mr Owen wrote to the applicant as follows:
“NOTIFICATION OF DISCIPLINARY DECISION
I refer to the recent Inquiry undertaken by Mark Butterworth into your alleged breaches of the Australia Post Code of Ethics as stated in the Notification of Inquiry letter dated 1 September 2004.
Having carefully considered the Inquiry Report, findings and recommendation; the information contained in your written submission; and that which you shared with me at our recent meeting I have decided to transfer you to Osborne Park Delivery Centre with effect from Monday 7 March 2005.
I would ask that you report to Delivery Centre Manager Brian Yorke at 11.55 pm on Monday 7 March 2005. I have also arranged for you to be given paid leave for Thursday night shift of this week so you can make any necessary arrangements prior to commencing at your new location.
The reason for my decision is that our investigations since our discussion confirm that you and Ms … are contributing significantly to the instability of the Nedlands Delivery Centre night shift group by engaging in conduct that intimidates and offends fellow employees. While you have both provided documentation aimed at outlining your views and opinions concerning the management of the workplace it does not justify your collaborative intimidatory behaviour or the effect it is having on the workplace group as a whole.
It is appropriate to mention that I have considered this matter carefully and I am now providing you with an opportunity to reconsider your commitment to the Corporation’s Code of Ethics and the standards of behaviour expected of everyone employed by Australia Post. In stating this I cannot stress enough importance (sic) for you to conduct yourself in a professional manner in your dealings with all fellow employees.
If you consider the penalty imposed in relation to your breaches of the Code of Ethics to be harsh, unreasonable, unjust or unfair you may submit a written application requesting a review of the decision by a Board of Reference. The application must be lodged with the Manager, Human Resources, Australia Post, GPO Box 9000, Perth WA 6848 within 14 days of this letter ie by Tuesday, 15 March 2005.
…” (T36)
17. By letter dated 11 March 2005 the applicant informed the respondent that she wanted to appeal against Mr Owen’s decision because she believed it to be “harsh, unreasonable and unjust”. (T37)
18. By letter dated 19 April 2005 the respondent notified the applicant that her appeal would be heard by a Board of Reference on 27 April 2005. (T39)
19. On 2 May 2005 the Board of Reference Chairman, Mr V J Connell, made the following report:
“Ms Francis (sic) HOLDSWORTH was employed on night shift sorter duties as Postal Delivery Officer on Night Shift at Nedlands Delivery Centre. An Inquiry Officer was appointed by Australia Post to inquire into certain allegations that the employee had breached the Australia Post Code of Ethics and an appropriate sanction should be applied to her as a consequence of her alleged actions.
During the course of this hearing by the Board of Reference, as Chairman, I observed to the parties that in my view there should have been documented attempts by the Corporation to specify the alleged shortcomings of the employee with the opportunity to change the alleged behaviour and a commitment to review progress prior to a decision and a sanction being decided upon by the Corporation.
After considerable discussion it was agreed by the parties to fully and finally resolve this appeal by instead of any penalty being applied in this case Ms Holdsworth voluntarily sought a change of work location which was agreed to by Australia Post arranging for Ms Holdsworth to continue her employment at Osborne Park Delivery Centre (sic).” (part of T41)
20. On 10 May 2005 the applicant wrote to Mr Connell as follows:
“Further to my appeal on the 27th April 2005 at 9.30am and in response to your letter dated 2nd May 2005 received on the 5th May 2005, I would like to put forward in writing that I am unhappy with the outcome. To my knowledge the appeal would be based on whether Australia Post’s decision to transfer me to another location would be harsh, unjust, unfair and unreasonable.
As pointed out at the appeal it was a breach of the EBA 6 to transfer for a first breach of the Code of Ethics. After considerable consideration I do not believe that a transfer of me would be a resolve (sic) that I would be seeking. It (sic) was of the opinion that my health needed to be considered in the decision to take a voluntary transfer, but I strongly believe that if I was to go to another centre my health could suffer because it would be a consistent reminder that I have been punished for an alleged first breach of the Code of Ethics, and have been given no counselling or insight into the behaviour that is described as ‘collaborative and intimidating’.
I was under extreme pressure to agree with the informal recommendation by the chairperson. I was given no other options and also not given any time to consider the recommendation and given no opportunity to seek advice.
I would appreciate that you consider my views on this matter and I look forward to a response at your earliest convenience.” (part of T42)
The second Disciplinary Inquiry
21. By letter dated 11 March 2005 the applicant was formally notified that an Inquiry would be held into allegations that she had “breached the Australia Post Code of Ethics and committed misconduct”. That formal notification informed the applicant as follows:
“ The allegations that will be the subject of the Inquiry are that you:
1.Engaged in conduct directed towards Nedlands Delivery Centre Night Shift Supervisor … that had no proper purpose and by your conduct you intimated her.
Particulars:
1.1Shortly before 11pm on Thursday 3 March 2005 while Night Shift Supervisor … was driving to work you followed her in your motor vehicle down Loftus Street then into Government Road, and when Ms … stopped in the driveway at the gates to the Nedlands Delivery Centre staff carpark, you stopped your vehicle immediately behind her vehicle, across the entrance to the driveway. There was a passenger in your motor vehicle, Ms …
1.2When a motor vehicle driven by another employee of the Corporation drove down Government Street (sic) you drove away.
1.3Earlier that day you had been advised of your immediate transfer from the Nedlands Delivery Centre and you had been directed by Delivery Manager Anthony Beck not to return to the Delivery Centre without having obtained prior approval from him. You had not obtained prior approval from Mr Beck and had no proper purpose for being in the vicinity of the Nedlands Delivery Centre in the circumstances set out in 1.1 and 1.2.
1.4Ms … was intimidated by your conduct and in the circumstances, viewed objectively, your conduct was intimidating.
2.Failed to observe a lawful direction.
Particulars:
2.1On the completion of your shift on the morning of Thursday 3 March 2005 Delivery Manager Anthony Beck directed you not to return to the Nedlands Delivery Centre without having obtained prior approval from him.
2.2You returned to the Nedlands Delivery Centre shortly before approximately 11pm on Thursday 3 March 2005 in the circumstances set out in 1.1 above. You had not obtained prior approval from Mr Beck.
The Inquiry will be conducted by Richard Brooks, Production Manager, Perth Mail Centre.
…
If the allegations are proven, the Inquiry Officer may recommend to the Authorised Officer (State Operations Manager, Mail and Networks Division) that you be:
·Dismissed;
·Transferred to another position or location at the same or lower level;
·Reduced two increments for a period of 12 months (or equivalent monetary penalty); or
·Counselled.
...” (T48)
22. The Inquiry Officer, Richard Brooks, subsequently interviewed the applicant (on 21 March 2005) and 5 other Australia Post staff members (on 17 March 2005), and was provided with a statutory declaration made by the applicant on 21 March 2005 (T55) and a statutory declaration made by Mark Holdsworth, the applicant’s husband, on 21 March 2005 (T56).
23. In his “Report on Code of Ethics Inquiry – Francis (sic) Holdsworth”, dated 20 April 2005, Mr Brooks stated his findings as follows:
“ 4. Findings
Australia Post takes compliance with the Code of Ethics very seriously. In particular where allegations of harassment and intimidation are made the Corporation’s Discipline Process require (sic) investigations into those allegations to be undertaken. Any decision on whether those allegations are sustained is only made following careful investigation of all the relevant circumstances and after giving any individual involved an opportunity to consider and respond to any allegations which may have been made against them.
Breach 1: Allegedly engaging in conduct directed towards the Nedlands Delivery Centre Night Shift Supervisor … that had no proper purpose and by Ms Holdsworth’s conduct intimidated Ms … Not Proven
Based on the evidence provided by Ms …, which I find to be credible and which was corroborated by other witnesses, and other information gathered during the Inquiry, I am satisfied that an incident did occur at the Nedlands Delivery Centre at approximately 10.50pm on Thursday 3 March involving a white Honda vehicle.
On the issue as to whether Ms Holdsworth was the driver of the white Honda vehicle, while I find the evidence provided by Ms … credible, I have also considered the evidence provided by Ms Holdsworth to the effect that she was home in bed at the time of the incident. I have been unable to identify witnesses who are able to verify that Ms Holdsworth was in fact the driver of the Honda vehicle, and therefore have been unable to reconcile the conflicting evidence.
I do note however, that the description of the vehicle involved in the incident is similar to Ms Holdsworth’s vehicle.
After careful consideration of all of the evidence, I am unable to find this breach proven even though there is a body of evidence to the contrary.
Breach 2: Failed to observe a lawful direction. Not Proven
Based on the Findings of Breach 1 this breach is not proven.”
Mr Brooks’ Report concluded as follows:
“ 5. Recommendation
Not applicable given that the allegations against Ms Holdsworth have not been proven.” (T58)
24. Mr Brooks notified the applicant by letter (undated) of the outcome of the Disciplinary Inquiry. (T59)
25. On 26 April 2005 Debra Payne, Acting State Operations Manager, Mail and Networks Division, wrote to the applicant as follows:
“As you are aware, the Australia (sic) Postal Corporation (‘the Corporation’) takes compliance with the Code of Ethics very seriously, and accordingly it is incumbent on both the Corporation and employees to ensure that the Code of Ethics is complied with. In addition, the Corporation’s Disciplinary Process requires that where there has been an alleged breach of the Code of Ethics, an investigation must be undertaken and where substantiated disciplinary proceedings commenced to address the breach.
I have read the Inquiry Report prepared by Richard Brooks and having read and considered the evidence and findings of Mr Brooks find that an incident did occur at the Nedlands Delivery Centre on the night of Thursday 3 March 2005 involving a white Honda vehicle.
However, given the inability to reconcile the conflicting evidence, I am satisfied that the alleged breach of the Code of Ethics cannot be substantiated. On that basis no further action will be taken in relation to this matter.” (T60)
The Australia Post Code of Ethics
26. The Australia Post Code of Ethics (T61) states (inter alia):
“ …
Workplace relationships
Australia Post is committed to equal employment opportunity and selects and promotes employees according to merit. Our relationships and decisions are characterised by integrity and fairness and a desire to work together. We commit to:
-Treating everyone with courtesy, patience and respect and not causing disadvantage, discomfort or embarrassment to fellow employees.
…
-Ensuring that there is no direct or indirect discrimination or harassment
Work practices and performance
Honesty and high performance standards will prevail. We commit to:
-Being aware of, and complying with, Australia Post policies and all applicable laws, industrial awards and agreements governing our business conduct, and seeking clarification if needed.
…
-Consistently performing work to an agreed or prescribed standard or higher.
-Exercising due care in our work.
…
-Acting and behaving in a manner that never intentionally causes damage to Australia Post’s business interests, employee relations or public reputation.
-Not engaging in conduct that intimidates, offends or damages the property of other employees, customers, suppliers or the public.
…
IF THE CODE IS BREACHED
Behaviour in breach of the Code of Ethics is damaging to the business and to public and work relationships.
Action or omission that contravenes this Code constitutes misconduct and will be subject to counselling or disciplinary action appropriate to the circumstances and seriousness of the behaviour. Disciplinary action may include dismissal.
If the conduct involves non-compliance with relevant laws, it will normally also be referred to Corporate Security or any other relevant area, or to the appropriate law enforcement authorities.
…”
The Australia Post Employee Counselling and Discipline Policy and Procedures – Section 6
27. The Australia Post Employee Counselling and Discipline Policy and Procedures (“ECDPP”), Section 6 (T63), contains the following relevant provisions:
“ …
6.2.1AUSTRALIA POST CODE OF ETHICS
The minimum standard of behaviour and/or performance expected of all employees of Australia Post is set out in Australia Post’s Code of Ethics. The achievement and maintenance of those standards to which we individually and collectively commit, is critical to achieving high levels of customer service and meeting the Corporation’s business requirements in a highly competitive commercial environment.
The Code of Ethics is supplemented by the Australia Post Employee Counselling and Discipline Process (the Process), which is applied in cases where it is considered that an employee’s behaviour and/or performance is inconsistent with the standards in the Code of Ethics. The Process includes employee review rights to a Board of Reference. The review rights apply when an employee is subject to disciplinary action ie the employee is dismissed, transferred to another position of the same or a lower level, had imposed a two (2) increment reduction for 12 months (or equivalent penalty) following a Disciplinary Inquiry conducted under the Discipline component of the Process. The review rights also apply when an employee is suspended without pay pending a Disciplinary Inquiry decision.
6.2.2AUTRALIA POST EMPLOYEE COUNSELLING AND DISCIPLINE PROCESS
a)OBJECTIVE
The Employee Counselling and Discipline Process, has three (3) distinct but not necessarily sequential components namely, ongoing informal Face-to-Face Feedback, Counselling (Formal and Warning) and Discipline (Disciplinary Inquiry).
The decision as to which of the three components to initially apply will be based on the seriousness of the shortfall in the employee’s behaviour and/or performance against the standards in the Code of Ethics. That decision will depend on the facts and circumstances as identified by, or conveyed to, the employee’s manager or supervisor. Where the manager or supervisor does not identify the behaviour and/or performance issue first hand, he or she must closely question the information source in order to obtain sufficient facts to determine the seriousness of the shortfall and the appropriate intervention. The status of these facts and circumstances at the time of initiating the Process is that of allegations which will either be established or not established during the application of the Process, and in particular, after the employee has been given the opportunity to respond to the allegations.
Giving prompt informal Face-to-Face Feedback to employees about their behaviour and/or performance is an important management responsibility. Where it is established during the informal discussion that there is a minor shortfall between the required standard of behaviour and/or performance and an employee’s actual behaviour and/or performance, the feedback should be constructive, ie developed and delivered to encourage an employee to achieve and maintain behaviour and/or performance that is consistent with the Code of Ethics.
The objective of the Counselling component of the Process (ie both Formal and Warning Counselling) is to:
i)promptly draw to the attention of an employee, a more serious alleged shortfall(s) of the Code of Ethics standards; and
(ii)where the behaviour and/or performance is proven during the course of the Formal or Warning Counselling interview to be below those standards, to assist the employee to achieve and maintain behaviour and/or performance that is consistent with the standards in the Code of Ethics.
Accordingly, the Counselling component is primarily based on personal counselling at progressively higher levels of line management, appropriate to the seriousness of the misconduct and/or deliberate under-performance against an agreed or prescribed standard.
In the event that reasonable efforts to assist an employee to achieve and maintain the required change through Counselling is ineffective, or there is an alleged very serious breach of the Code of Ethics, a Disciplinary Inquiry will be initiated. The outcome of a Disciplinary Inquiry may lead to disciplinary action in the form of the employee’s dismissal, transfer to another position of the same or a lower level, or the imposition of a two (2) increment salary reduction for 12 months (or an equivalent penalty).
Where it is established during the Formal Counselling interview or Warning Counselling interview or the Disciplinary Inquiry interview that an employee’s failure to achieve and maintain the required change is not deliberate on the part of the employee, the matter should be dealt with under clause 3 – ‘Inefficient/Incompetent Employees’, of the Australia Post Principal Determination. It should not continue to be progressed under the Employee Counselling and Discipline Process.
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6.2.3OVERVIEW OF THE EMPLOYEE COUNSELLING AND DISCIPLINE PROCESS
A broad outline of the Process to be applied when a manager or supervisor considers that there is a shortfall in an employee’s behaviour and/or performance against the standards in the Code of Ethics is as follows:
a) MINOR SHORTFALL(S)
i)Giving regular personal Face-to-Face Feedback to employees about their behaviour and/or performance is an important management responsibility. All feedback needs to be constructive ie developed and delivered to encourage and recognise behaviour and/or performance that is consistent with the Code of Ethics. Where it is considered that there is a minor shortfall in an employee’s behaviour and/or performance against the standards in the Code of Ethics, the employee’s line control supervisor should promptly draw the behaviour and/or performance issue to the attention of the employee in an informal face-to-face discussion. The employee should be informed of the specific details that have given rise to the discussion and be given the opportunity to respond.
ii)If the discussion confirms that a minor shortfall has occurred, the employee should be:
· advised of the standard expected under the Code of Ethics which emphasises high performance behaviour and performance which is critical to achieving high levels of customer service and meeting the Corporation’s business requirements in a highly competitive commercial environment; and
· engaged in jointly identifying what needs to be done to achieve and maintain behaviour and/or performance which is consistent with the Code of Ethics.
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iv)While there is no need to formally document the discussion, a supervisor/manager must make a brief diary note to assist in the monitoring of the agreed action(s). It is essential that follow-up action(s) take place at the agreed time(s).
b)LACK OF IMPROVEMENT OR MORE SERIOUS SHORTFALL(S)
If the unacceptable behaviour and/or performance continues, or is repeated in spite of the discussion(s) and agreed action(s), or a more serious behaviour and/or performance issue is identified, the line control supervisor will need to decide whether the issue would be likely to be resolved by further Face-to-Face Feedback or whether it would be more appropriate to take action in accordance with one of the formal components of the Process.
Where it is clearly established that an employee’s failure to achieve and maintain the required change is not deliberate on the part of the employee, the matter should be dealt with under clause 3 – ‘Inefficient/Incompetent Employees’ of the Australia Post Principal Determination. It should not continue to be progressed under the Employee Counselling and Discipline Process.
c) FORMAL COMPONENTS
Unlike the Face-to-Face Feedback component of the Process which is informal, the other two components, namely Counselling (Formal and Warning) and Disciplinary Inquiry, are formal.
The three components of the Process will not necessarily be applied sequentially in all cases. The component of the Process used by a supervisor or manager will involve the exercise of judgement and will depend upon his or her assessment of the known facts and the particular circumstances of the individual case under consideration. It is possible that a manager may commence with one component of the Process but change it to another after having given the employee the opportunity to respond to the allegation(s).
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6.2.8 FORMAL COUNSELLING
a) OVERVIEW
i)A Formal Counselling is a personal interview between an employee and his or her supervisor or manager and must be remedial and supportive.
ii)Formal Counselling would be held in circumstances where misconduct and/or deliberate under-performance against an agreed or required standard which has previously been discussed with the employee through Face-to-Face Feedback with his or her immediate supervisor, is repeated or continued and further Face-to-Face Feedback is considered ineffective. It may also apply where other alleged deliberate misconduct occurs (eg failure to adopt safe work practices or use safety wear and/or equipment supplied by Australia Post or failure to show courtesy and respect to a fellow employee or failure to observe a prescribed work procedure or standard etc *).
[*These examples are used for illustrative purposes only. Each situation must be considered on an individual basis.]
iii)The objective of Formal Counselling is, where the conduct and/or performance issue is proven, to assist the employee in understanding what needs to be changed, why the change is necessary and to jointly discuss and agree on how the employee can achieve the required change(s) within a reasonable time-frame and maintain that change. The required change(s) in the employee’s behaviour and/or performance is formally documented.
b) APPROPRIATENESS OF FORMAL COUNSELLING
In determining whether Formal Counselling is appropriate, a supervisor or manager must decide, on the facts and circumstances as known prior to hearing the employee’s response, whether:
· the situation can be resolved through further Face-to-Face Feedback;
· the case should be handled at the next management level and addressed through a Warning Counselling or a Disciplinary Inquiry; or
· Formal Counselling is sufficient.
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6.2.9 WARNING COUNSELLING
a) OVERVIEW
i)If an employee’s behaviour and/or performance does not improve after Formal Counselling or the nature of the allegations warrants it, Warning Counselling should normally be undertaken by the next level of management (ie the person to whom the employee’s line control supervisor reports) in order to emphasise the seriousness of the employee’s situation.
ii)The purpose of the Warning Counselling is, where the alleged more serious misconduct and/or apparent deliberate under-performance against an agreed or prescribed standard is proven during the Warning Counselling interview, to:
· emphasise to the employee that his or her behaviour and/or performance is unacceptable, explain to the employee why it is important to change by referring to the relevant sections of the Code of Ethics and the actual or potential work consequences of his or her behaviour and/or performance;
· establish the employee’s commitment to making the necessary improvement; and
· make clear to the employee that further misconduct and/or deliberate under-performance against an agreed or prescribed standard may lead to a Disciplinary Inquiry, the consequences of which may be the employee’s dismissal or transfer to another position of the same or a lower level or the imposition of a two (2) increment reduction for 12 months (or an equivalent penalty).
b) APPROPRIATENESS OF WARNING COUNSELLING
The Supervisor/Manager who is responsible for undertaking the Warning Counselling must decide on the facts and circumstances as known prior to hearing the employee’s response on the more serious alleged misconduct and/or deliberate under-performance whether:
· further Formal Counselling would achieve the necessary improvement;
· Warning Counselling is appropriate; or
· details of the current allegation(s) should be referred to the next level of management to consider whether it is appropriate to conduct an immediate Disciplinary Inquiry.
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6.2.10 DISCIPLINARY INQUIRY
a) OVERVIEW
i)When it is clear that the required improvement in behaviour and/or performance has not been achieved and/or maintained after a Warning Counselling (ie where all reasonable attempts to assist the employee have been unsuccessful), or where very serious misconduct (eg violence, misappropriation of monies etc *) is alleged to have occurred, a Disciplinary Inquiry should take place.
[*These examples are used for illustrative purposes only. Each situation must be considered on an individual basis.]
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c) PREPARATION FOR DISCIPLINARY INQUIRY
Written advice of the Disciplinary Inquiry to the employee must include the following information:
· details of the very serious alleged breach(es) of the Code of Ethics and the specific particulars of the employee’s behaviour and/or performance that is considered to be unacceptable and the reason why it is unacceptable. Be as precise and objective as possible.
[In the interests of natural justice, the employee must be provided with accurate particulars and not broad allegations so that the employee knows the full case against him or her and has a fair and satisfactory opportunity to present a case in response.]
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e) DISCIPLINARY INQUIRY FINDINGS, REPORT AND RECOMMENDATIONS
i)If the allegation(s) is proved to be unfounded (ie the employee provides an acceptable reason for his or her behaviour and/or performance) or is not proved, the employee and supervisory staff must be informed immediately. The formal documentation relating to the Disciplinary Inquiry is, consistent with the relevant archival requirements, to be retained on the employee’s personnel file for 18 months after the completion of the Disciplinary Inquiry.
ii)If the Inquiry Officer finds the allegation(s) proved and there are no mitigating circumstances and that the breach(es) constitutes:
(a) serious and wilful misconduct; and/or
(b)serious and deliberate under-performance against an agreed or prescribed standard; or
(c) serious misconduct; or
(d) ‘grossly negligent conduct’,
he or she should then access the employee’s personnel file and refer to any Counselling or Discipline records. The Inquiry Officer will need to exercise his or her discretion on the use or relevance of such records that are within the record retention periods specified in section 6.2.7(a) above – ‘Records’ and the weight that is to be placed on that material.
iii)Where an employee’s previous Counselling or Discipline record is taken into consideration in determining the next appropriate course of action, the employee must be informed of the material that has been used.
iv) Based on a consideration of all the facts, the Inquiry Officer will then:
(a)submit the Disciplinary Inquiry Report [including recommendation] to the Delegate. [The recommendation may be disciplinary action ie dismissal, transfer to another position of the same or lower level or the imposition of a two (2) increment salary reduction for 12 months (or equivalent penalty) or that arrangements be made for the conduct of a Face-to-Face discussion, a Formal or a Warning Counselling.]
and
(b)where the recommendation is disciplinary action, also provide the employee with a copy of the Disciplinary Inquiry Report [including recommendation(s)] together with written advice that:
· the Disciplinary Inquiry Report and recommendation(s) have been referred to the Delegate (provide name and contact details) for consideration and decision; and
· the employee may, if he or she so chooses, either directly or through his or her representative, forward a written statement to the Delegate or seek a meeting with the Delegate; and
· either of these two (2) actions should take place within five (5) calendar days of the date of the advice; and
· the representation of the employee or his or her representative to the Delegate may only be on the question of the recommended penalty and procedural issues. The merits of the case will not be reviewed.
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6.2.11 DISCIPLINARY ACTION
a) ACTION BY DELEGATE
The Delegate will:
· consider the Disciplinary Inquiry Report together with any written or verbal representations made either by the employee or through his or her representative. That representation may only be on the question of the recommended penalty and procedural issues. The merits of the case will not be revisited. The role of the Delegate is to listen and take notes of issues raised by the employee, not to engage in a debate or discussion of the contents of the Inquiry Report. At the conclusion of the representation, the employee is to be informed that his or her comments have been noted and will be taken into consideration before the Delegate makes a final decision. …
· be satisfied that the employee has had reasonable opportunity to respond either verbally or in writing to the allegations against him or her; and
· take whichever of the following actions is considered to be appropriate based on the evidence provided:
1. Accept the Inquiry Officer’s recommendation(s); OR
2.If the recommendation(s) is considered inappropriate (ie either too harsh or too lenient), implement a more appropriate course of action ie:
a) conduct or arrange a Warning Counselling; or
b)transfer the employee to a position of the same or lower classification; or
c)where the breach of the Code of Ethics is sufficiently serious to be only marginally short of dismissal and transfer action would either advantage the employee or result in too harsh a penalty, reduce the employee’s salary by two increments for a period of 12 months (or equivalent penalty); or
d) dismiss the employee; OR
3. Reject the recommendation(s) on the basis that no disciplinary action is required.
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b) DISMISSAL OR TRANSFER
i) Restrictions
No employee is to be dismissed or transferred for the following reasons:
1.For a first breach of the Code of Ethics, unless the employee’s work conduct is established as constituting serious and wilful misconduct; or ‘grossly negligent conduct’*, or
2.If the employee is inefficient or incompetent, or unable to discharge, or incapable of discharging the duties of his or her position for reasons that are not deliberate on the part of the employee. (Refer Clause 3 of the Australia Post Principal Determination.)
* ‘Grossly negligent conduct’ would apply in isolated circumstances. Such conduct would involve a reckless act or omission which causes or could cause significant damage or harm and which would adversely effect the employment relationship.
Decisions involving dismissal or transfer which are based on gross negligence as opposed to serious and wilful matters should not be made without a prior referral to the Corporate HR Group.
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Appendix 1, which comprises an overview chart of the Employee Counselling and Discipline Process, lists (inter alia) the factors for determining the appropriate formal component of the Process to be used, as follows:
Formal Counselling
Warning Counselling
Disciplinary Inquiry
[Before conducting the Discipinary Inquiry, the Inquiry Officer must document the reason(s) for proceeding to the Inquiry]
· a serious alleged Code of Ethics shortfall (eg deliberate work misconduct such as apparent failure to adopt safe work practices, treat a fellow employee with courtesy and respect or to observe a prescribed work procedure or standard), even though a first occurrence
· repeated alleged shortfall in behaviour and/or performance after face-to-face feedback and further face-to-face feedback considered ineffective
· a more serious alleged shortfall in behaviour and/or performance even though a first occurrence
· further misbehaviour and/or deliberate under-performance against an agreed or prescribed standard during Formal Counselling review period
· Formal Counselling ineffective
· very serious alleged work misconduct (eg violence, misappropriation of monies) or ‘grossly negligent conduct’ even though a first occurrence
· reasonable attempts to assist employee to rectify unsatisfactory behaviour and/or performance unsuccessful
· further shortfall in behaviour and/or performance during Warning Counselling review period
· Warning Counselling ineffective
As regards the abovementioned “determining factors”, Appendix 1 states:
“NB: to be used as a guide only. The stage accessed will depend on the facts and circumstances and seriousness of the alleged shortfall/breach in the employee’s observance of the Code of Ethics standards.”
The Australia Post Enterprise Agreement 2004–2006
28. Clause 16.1 of the Australia Post Enterprise Agreement 2004-2006 (“EBA6”) provides that this Agreement is binding on Australia Post and the specified unions and employees of Australia Post. As regards “Employee Discipline”, cl 8.15 provides:
“The arrangements outlined in Attachment A shall apply.”
Attachment A, which is headed “EBA 6 Conditions of Service”, relevantly states:
“10.Employee Discipline
1.Australia Post has the right to dismiss an employee, impose a penalty of a reduction of two (2) increments for a period of 12 months (or equivalent penalty), or to transfer an employee to another position of the same or a lower classification for behaviour or performance which warrants such action, including:
(i)misconduct or wilful neglect of duty or grossly negligent conduct;
(ii)incompetence or inefficiency for reasons within the employee’s control;
(iii) failure to observe the Code of Ethics.
2.Except in the case of serious and wilful misconduct or grossly negligent conduct (see below), Australia Post shall ensure that:
(i)employees are counselled and/or given a warning in order to assist them to maintain acceptable standards of behaviour and performance;
(ii)no employee is dismissed or transferred for a first breach of the Code of Ethics.
Grossly negligent conduct would apply in isolated instances only. For the purpose of this clause, such conduct involves a reckless act or omission which causes or could cause significant damage or harm and which would adversely affect the employment relationship. Decisions involving dismissal or transfer which are based on gross negligence (but not serious and wilful matters) should not be taken without prior referral to the Corporate HR Group.
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4.In exercising these rights, Australia Post shall not take action which is harsh, unjust or unreasonable.
5.Australia Post shall furnish written advice to an employee of a decision under clause (1) and of reasons for the decision together with details of the procedures for lodging an application for review.
6.Where transfer, dismissal or penalty under clause (1) is considered to have been harsh, unjust or unreasonable, the employee concerned may submit an application for review of the decision by a Board of reference. Any such application must be lodged within 14 days of the transfer, penalty, or dismissal, in accordance with procedures established by Australia Post. …
Board of Reference
7.For the purposes of clause (6), the Industrial Registrar of the Australian Industrial Registry shall be requested to appoint a Board of Reference for the duration of the Agreement.
8.A Board of Reference shall be constituted by a Chairperson as may be agreed upon by the parties, or, where the parties are unable to agree, as nominated by the Industrial Registrar.
9.A Board of Reference shall seek to resolve any application for review submitted to it, having regard to whether the decision was harsh, unjust or unreasonable.
10.A Board of Reference, in reviewing a decision in relation to which an application is made:
(i)may form (sic) itself in such manner as it thinks fit;
(ii)has discretion as to the procedure to be followed;
(iii)is not bound by the rules of evidence; and
(iv)shall proceed without regard to legal form.” (T62)
The Applicant’s Evidence
29. The applicant’s evidence-in-chief is set out in her witness statement, dated 18 August 2008, as follows:
“I was humiliated, demeaned, belittled at my place of work which was the Australia Post, Nedlands Delivery Centre by management and staff. I was made the subject of two inquiries.
The first inquiry was handed to me by my Manager, Mr Anthony Beck, on the 2.9.04. When he handed me the inquiry I asked him to explain to me what it was and where were these allegations coming from, he responded by telling me that he knew nothing about them and nothing about the person or persons making the allegations, the only thing he explained to me was that these allegations could be proven on probability. I asked Mr Beck to explain what that meant and what he said to me was that if enough people out there say it happened then it would be proven.
I got home that morning and stayed awake to make contact with the inquiry officer and find out what I needed to do and to ask who the claimant or claimants were. Ms Anna Mora was the initial inquiry officer and she told me that at that point she had no idea about the details of this inquiry and she would get back to me with the relevant information and answer some of my queries. Ms Anna Mora did call me back to let me know that she will no longer be the inquiry officer and I would need to wait to be notified of the new inquiry officer.
I was notified of the new inquiry officer on the 10.9.04 and once again I made immediate contact with him to let him know I was aware that he was appointed, the new inquiry officer being Mr Mark Butterworth. I again wanted to know who the claimant or claimants were and any other relevant information pertaining to this inquiry. Mr Butterworth couldn’t provide me with any information.
During the next couple of weeks an interview time was made, to allow me to respond to these allegations. The interview was arranged at 5 am on the 24.9.04. Mr Butterworth came in to the Nedlands Delivery Centre at 11 pm on the 23.9.04. I initially thought that maybe I had been confused and got my times wrong, but Mr Butterworth called a meeting with all of the staff and announced that there would be an inquiry and he would be conducting interviews. He then proceeded to interview the night shift staff before he had interviewed me. I felt embarrassed that the night shift staff had the opportunity to view all of my (sic) baseless and unfounded allegations before I had even got a chance to respond to them, but I didn’t say anything.
At 5am my interview took place with a union representative, Mr Gary Carson, as my witness. I felt the way Mr Butterworth interviewed me and spoke to me was in a very negative and hostile manner and I felt that he had already made up his mind about these allegations, an example of this was when I asked him who had made these allegations towards me, he told me that it was a complaint made by one of my colleagues Ms …, and that Mr Graeme Woodthorpe and Ms Debra Payne upgraded her complaints to an inquiry. He had confirmed to me on more than one occasion that there was only one complainant and this was Ms … When I questioned one of the allegations that was made, I asked him how could Ms … even make this allegation when she wasn’t even present on this date, he just got angry and just said ‘WELL DID YOU DO IT’, he didn’t explain anything about the allegation or clarify it. Through the months ahead when more documentation was provided to me I noticed that the dates had been changed.
I was told by Mr Butterworth that it would be necessary to have a second interview. This was arranged on the 22.10.04. Mr Butterworth notified me that a second interview wasn’t necessary because he had sufficient information.
On the 13.11.04 I was told by a colleague that there was a result to the inquiry and was told by my supervisor that I was going to be transferred. I found this news quite distressing because I personally had not been made aware of any recommendations or decisions. I got home and told my husband what had happened and he told me to call Mr Butterworth to find out whether this was true. I was quite upset so my husband made the call for me. I was really worried that my supervisor would further punish or victimize me for making Mr Butterworth aware that she was telling certain members of staff this information and I was also worried that the staff that had told me would be victimized or punished for disclosing this information. Mr Butterworth confirmed to my husband that he had not made a decision and I would be notified as soon as it was (sic). The next day the Manager, Mr Anthony Beck, had a meeting with all of the night shift staff to tell them that we were not to discuss the inquiry and that there was still no decision made. I was really embarrassed that again my colleagues were made aware of my future in the company and that my position in the company was still in question.
On the 21.12.04 (four days before Christmas) Mr Butterworth came to the Nedlands DC to hand deliver his recommendation for the inquiry. His recommendation was that I be transferred, but I was told it was only a recommendation and that Mr Mike Owen (State Manager Mails and Network) would make the final decision.
A meeting with Mr Mike Owen was arranged for the 5.1.05 and I was given the opportunity to discuss with Mr Owen the inquiry. He later gave me the opportunity to put in writing some of the reasons why I should not be transferred. I did provide Mr Owen a very detailed letter of why I believed I should not be transferred and some examples of this were that there was no procedural fairness applied and that it was a breach of the EBA 6.
This decision was confirmed in writing by Mr Owen and given to me by Mr Beck on the 3.3.05 at 6am. Mr Beck told me that I was required to leave the premises immediately and not to speak to anyone and I would be escorted off the premises. He also explained to me that I was not to go to work that night and was to have the night off and that if I needed to return to Nedlands DC, I would need to get prior permission. I was escorted off the premises by Mr … in full view of all the employees at the Nedlands DC. I was completely humiliated by this experience. I could not believe that the company could treat me in such a disrespectful manner but it seemed that the whole thing was staged and designed to humiliate, embarrass and belittle me.
In the whole time I had been employed at Nedlands DC, which was approximately 5 years, I had never witnessed anything like that except for 5 minutes before whereby I witnessed one of my colleagues Ms … who was also involved in the same inquiry. I had however seen codes of ethics being breached which I considered far more serious by other staff and I was never made aware of any inquiries or asked to be called as a witness.
I went home that day and felt shaken by what I had just experienced. I stayed awake all day and went to bed reasonably early because I had not slept all day and was tired. I slept all through the night and didn’t go anywhere and I woke the next day. That morning I received a telephone call from Ms Debra Payne and she told me that I was now involved in a second inquiry because I had allegedly Breached a Code of Ethics. She told me that 3 people at Nedlands DC had seen me drive past. I couldn’t believe what I was hearing. I tried to tell Ms Payne that I was home in bed, and she just kept telling me that she had 3 witnesses and the inquiry was going ahead. I was so shocked, my daughter was home with me at the time of the telephone call and she was also at home at the time of the alleged incident, so I thought maybe if I put my daughter on the phone to confirm my whereabouts Ms Payne would maybe believe me and not go ahead with the inquiry. She got quite angry when my daughter was on the phone and wouldn’t listen to anything she had to say. She wasn’t interested in anything I or my daughter had to say. She spoke to me like I was guilty. I was so shocked and amazed that I could now be involved in an inquiry whereby I breached the code of ethics while I was in bed. I was in bed because the company told me I must have the night off and was not allowed to attend work. In my opinion I felt that maybe they had set me up and that the company was either looking for ways to have the decision of the first inquiry reinforced and that they would not breach the EBA 6 or that it was their intention to dismiss me. Either way I lost complete trust in the Company and that they had no duty of care to me they just wanted to get rid of me.
The inquiry went ahead and my husband and I supplied Statutory Declarations stating our whereabouts of the alleged incident (sic). Even though the inquiry was never proven, the way the results were worded was that they believe that an incident did occur.
My appeal for the first inquiry was on the 27th April 2005. Mr Vince Connell was the chairman. Mr Connell observed that in his view there should have been documented attempts by the Corporation to specify the alleged shortcomings of myself with the opportunity to change the alleged behaviour and a commitment to review progress prior to a decision and a sanction being decided upon by the Corporation.
I was under extreme pressure to agree with the informal recommendation. I was given no other options and also not given any time to consider the recommendation and given no opportunity to seek advice.
My health, ie mental health, started to decline very soon after the inquiry result was handed to me and when I was escorted off the premises. I felt I couldn’t trust people and became withdrawn and frightened to be anywhere that I didn’t consider safe. I got progressively worse. By that I mean I was unable to drive my car, always needed somebody near me so that they could clarify my whereabouts. I started to have panic attacks and they would cripple me, I would struggle to breathe, I would have to go and lie down because I felt like I was going to die, sometimes I would go to bed and just try and fall asleep and I truly believed I was not going to wake up because I was dying. I tried to cope with it myself and not talk about it to anyone, because maybe they would think I was crazy, because I didn’t really understand what was happening. There were days where I couldn’t get out of bed because I felt exhausted. I didn’t even have the energy to do anything. I couldn’t even have a shower because it felt like it would be too exhausting. One day I was lying in bed and when my husband came in I asked him to sit with me. I explained to him that I was too scared to be alone and could he just stay with me and not leave my side. My husband was quite concerned about me so he helped me have a shower and took me to the doctor’s while I lied (sic) in the back seat of the car. When I got to the doctor’s I felt a bit more at ease, because I thought if something happens, at least I’m at the doctor’s. When I went into the doctor’s office I explained to him that I was feeling frightened and we also discussed admitting me to hospital, so that I felt comfortable knowing there were people around because it was necessary for my husband to be able to go to work as he couldn’t be with me all of the time. I personally decided that I would try and push through the fear and stay at home by myself. The doctor prescribed medication for me in the form of Zoloft and that did help me. I went to Dr Helena Piirto for a few visits, but to be honest I could not afford to keep going. I tried to deal with it myself, and as long as I didn’t have to go to work at Australia Post it was easier for me to deal with.
The thought of going to work for a Company that I considered to have no interest in providing me with a safe working environment and not showing any interest in why I was feeling this way and not providing me with any counselling to help me deal with the injustices that I believed I experienced (sic). They weren’t interested in helping me at all. They did however request that I attend their doctor, Dr Lai, on the 9.6.05, but he wasn’t really there to advise me of what I should do, he was there I guess just to make a diagnosis whether I was unfit for work. I never heard anything about that visit. I have not returned to work simply because I don’t feel comfortable going to a different centre. Australia Post is insistent that I do not return to Nedlands DC.
I personally feel that I may have coped a lot better had I been allowed to return to Nedlands DC because at least all of my colleagues would have seen that an injustice had occurred and that it would have been rectified. Given that I haven’t been allowed to return just shows my colleagues that in fact the inquiry and the action that they took was justified.
The injustices that I had experienced were brought to the attention of the diversity department and I also put in writing to the regional manager Mr Graeme Woodthorpe in January of 2004 that I felt that I was involved in a constructive dismissal. He met with me and we discussed some of the issues. He later wrote back to me and confirmed in writing just some of the issues I had raised and that they would be rectified.
I believe I was working in a climate that was not fair and that I was being treated very differently to others. I believe I was repeatedly focused on. I also believe that if I had not experienced these injustices at my place of work I would not have developed this illness.
I would have probably not developed this illness if Australia Post had followed due process, and not breached the EBA 6.” (Exhibit A1)
30. In cross-examination the applicant said that the circumstances which caused her to be distressed in March 2005 were the decision to transfer her (because she believed that this constituted a breach of EBA 6) and her being “escorted off” the premises of the Nedlands Delivery Centre. As regards the latter event, she said that it occurred at 6.00 am on 3 March 2005, 30 minutes before the night shift was due to end. She added that she believed it had been “staged” at that time “so that every staff member would be there” to witness the event. She said that, although she was upset about it, she was aware at that time that she had the opportunity to appeal and “things would be rectified then”.
31. The applicant confirmed that she had received a telephone call from Debra Payne in the morning of 4 March 2005 in the course of which Ms Payne had told her that 3 witnesses had seen her drive past the Nedlands Delivery Centre late on the previous night and that there would be an inquiry into that matter. She agreed that she had then become extremely agitated and vigorously denied having been at the Nedlands Delivery Centre the previous night, and had told Ms Payne that she was at home in bed that night. She acknowledged, however, that although she rejected that allegation, Australia Post was obliged to put it to her and to investigate it.
32. The applicant was referred to the following diary notes made by William Newnham in respect of conversations he had with her in 2001 (when he was Manager of the Nedlands Delivery Centre) regarding her behaviour in the workplace:
“7.06.01 Spoke to Fran regarding her attitude to … Fran said that she did not have a problem with … and that … was the one with the problem. I asked Fran why she did not talk or say hello to …, she replied ‘no reason’. Fran also said that she knows … talks about her but could give no examples. Fran also mentioned that … was a problem when emptying frames of mail. Will contact Tim Law to discuss.
12.06.01Spoke to Fran regarding … and informed Fran that they would not being (sic) working in close proximity until this issue has been sorted out. Fran acknowledged the fact. Fran had not noticed any change either way.
3.7.01Spoke to Fran and … regarding their behaviour towards each other. They both agreed to be polite to each other and cooperate while working together.
12.12.01Spoke to Fran regarding her behaviour towards … Fran said that she feels … is watching over her work and reporting her to … Fran is not happy with this.
12.12.01Spoke to Fran and … and informed them that if this behaviour continues that they both will be put on a code of ethics. All sledging and negative comments to cease.”
Asked whether she regarded any of those diary notes as inaccurate, she responded:
“They’re not inaccurate … there’s just not enough information to really gather why I was there in the first place.”
She agreed, however, that in 2001 she was having “frequent difficulties” in her relationship with another member of the night shift staff and that those diary notes reflected those difficulties.
33. The applicant was next referred to a diary note of 15 November 2002 made by Mr Newnham as follows:
“15.11.02 Spoke to Fran regarding the issues on nights. Fran must take control and delegate workloads to all staff. Fran must not be seen to favour certain staff members and must alienate herself from the so called groups. Fran must treat all staff accordingly (sic).”
She confirmed that that note indicated that at that time she was acting in a supervisory position, namely, Team Leader, and that it had been alleged that she had been favouring some staff members over others.
34. The applicant was also referred to a diary note of 1 September 2003 made by Mr Newnham as follows:
“1.9.03 Spoke to Fran regarding comments made to PDOs. Fran said ‘I’m not allowed to talk, they don’t like the sound of my voice’, or words to that effect. Fran did not deny this and this is an informal warning.”
She acknowledged that she had been the subject of a warning by Mr Newnham and that she was aware that that was a disciplinary action. Asked what the diary entry was referring to, she recalled an “open forum” staff meeting at which various members of the night shift staff had said that they did not like the sound of her voice and preferred that she did not talk, and added:
“So maybe that’s what I was referring to.”
Asked what she understood she was being warned about, she responded:
“I really have no clue, actually.”
35. As regards the Disciplinary Inquiry conducted by Mr Butterworth, the applicant said that she regarded it as unfair that Mr Butterworth interviewed other night shift staff members before he interviewed her because he might thereby have formed an opinion before he spoke to her. She also said that the “quite aggressive” way in which he questioned her led her to think that he had already made up his mind against her.
The Medical Evidence
Dr John Miller
36. Dr Miller, a general practitioner, prepared a report, dated 10 October 2007, regarding the applicant as follows:
“ I have been asked to provide a report on this lady in relation to her stress related illness beginning in early 2005.
I first saw her on April 1, 2005 when she complained of being harassed at work and of being accused of serious misconduct through changing her shoes at work and in driving past the workplace. She described how she was unable to drive her children to school and was unable to drive her car as a result of her anxiety. She further described being found curled up on the floor of her garage and of her obsession with the problems at her work.
●be satisfied that the employee has had a reasonable opportunity to respond either verbally or in writing to the allegations against him or her; …”
79. In the present case, according to the evidence before the Tribunal, Mr Butterworth, in the course of the Disciplinary Inquiry, interviewed the applicant and eight other members of the night shift staff at the Nedlands Delivery Centre, six of whom were interviewed before the applicant, and two of whom (including the Team Leader) were interviewed after the applicant. Two weeks before the commencement of the interviews, however, the applicant had been given written notification of the Inquiry which set out the allegations against her and contained detailed particulars of the conduct allegedly engaged in by her in breach of the Code of Ethics. After the Inquiry Report was delivered on 21 December 2004, the Delegate, Mr Owen, met with the applicant on 5 January 2005 for approximately 1½ hours and also gave her the opportunity to provide written submissions (which she did in the form of a type-written letter, comprising 11 pages, dated 17 January 2005) before making a decision on 2 March 2005 that she be transferred. In the Tribunal’s opinion the overall decision-making process, culminating in the transfer of the applicant, was conducted fairly and in accordance with the requirements of natural justice in that the applicant was given detailed prior notice of the relevant allegations and a reasonable opportunity to respond to them, and was not prejudiced by the manner in which the interview process was conducted by Mr Butterworth.
80. The Tribunal notes that the applicant also asserted that Mr Butterworth conducted the Disciplinary inquiry in such a way that she perceived that he was hostile to her and had “already made up his mind” about the allegations before he interviewed her, and that his findings were not impartial. Suffice it to say that the Tribunal is satisfied, on the whole of the evidence before it, that there is no reasonable basis for a perception of bias on the part of Mr Butterworth in relation to his conduct of the Disciplinary Inquiry.
81. Accordingly, the Tribunal does not accept the applicant’s submission that she was denied natural justice or procedural fairness in the Disciplinary Inquiry conducted by Mr Butterworth which ultimately led to the decision by Mr Owen on 2 March 2005 that she be transferred. The Tribunal notes that the applicant did not submit that she was denied natural justice by Mr Owen in the making of his decision of 2 March 2005. In any event the Tribunal is not satisfied, on the evidence before it, that Mr Owen’s decision involved a denial of natural justice to the applicant.
82. The applicant also submitted that the recommendation of Mr Butterworth in the Report of the Disciplinary Inquiry, and the “disciplinary decision” of Mr Owen, that she be transferred were in breach of EBA6 because no allegation or finding of “serious and wilful misconduct” had been made against her, and the breaches of the Code of Ethics found by Mr Butterworth involved “a first breach of the Code of Ethics” by her. In order to consider that submission it is necessary to revisit the relevant provision of the ECDPP and EBA6.
83. Section 6.2.10(e) of the ECDPP, which is headed “DISCIPLINARY INQUIRY FINDINGS, REPORT AND RECOMMENDATIONS”, relevantly provides:
“ …
ii)If the Inquiry Officer finds the allegation(s) proved and there are no mitigating circumstances and that the breach(es) constitutes:
(a) serious and wilful misconduct; and/or
(b)serious and deliberate under-performance against an agreed or prescribed standard; or
(c) serious misconduct; or
(d) ‘grossly negligent conduct’,
he or she should then access the employee’s personnel file and refer to any Counselling or Discipline records. …
…
(iv) Based on a consideration of all the facts, the Inquiry Officer will then:
(a)submit the Disciplinary Inquiry Report [including recommendation] to the Delegate. [The recommendation may be disciplinary action ie dismissal, transfer to another position of the same or lower level or the imposition of a two (2) increment salary reduction for 12 months (or equivalent penalty) or that arrangements be made for the conduct of a Face-to-Face discussion, a Formal or a Warning counselling.]
…”
Section 6.2.11, which is headed “DISCIPLINARY ACTION”, relevantly provides:
“ a) ACTION BY DELEGATE
The Delegate will:
…
·take whichever of the following actions is considered to be appropriate based on the evidence provided:
1. Accept the Inquiry Officer’s recommendation(s); OR
2. If the recommendation(s) is considered inappropriate (ie either too harsh or too lenient), implement a more appropriate course of action ie:
a)conduct or arrange a Warning Counselling; or
b)transfer the employee to a position of the same or lower classification; or
c)where the breach of the Code of Ethics is sufficiently serious to be only marginally short of dismissal and transfer action would either advantage the employee or result in too harsh a penalty, reduce the employee’s salary by two increments for a period of 12 months (or equivalent penalty); or
d)dismiss the employee: OR
3. Reject the recommendation(s) on the basis that no disciplinary action is required.
…
b) DISMISSAL OR TRANSFER
i) Restrictions
No employee is to be dismissed or transferred for the following reasons:
1.For a first breach of the Code of Ethics, unless the employee’s work conduct is established as constituting serious and wilful misconduct; or ‘grossly negligent conduct’, or
2.If the employee is inefficient or incompetent, or unable to discharge, or incapable of discharging the duties of his or her position for reasons that are not deliberate on the part of the employee. …
…” (original emphasis)
As regards EBA6, Attachment A thereto, which is headed “EBA6 Conditions of Service”, relevantly states:
“10. Employee Discipline
1. Australia Post has the right to dismiss an employee, impose a penalty of a reduction of two (2) increments for a period of 12 months (or equivalent penalty), or to transfer an employee to another position of the same or a lower classification for behaviour or performance which warrants such action, including:
(i) misconduct or wilful neglect of duty or grossly negligent conduct;
(ii)incompetence or inefficiency for reasons within the employee’s control;
(iii) failure to observe the Code of Ethics.
2. Except in the case of serious and wilful misconduct or grossly negligent conduct … Australia Post shall ensure that:
(i)employees are counselled and/or given a warning in order to assist them to maintain acceptable standards of behaviour and performance;
(ii)no employee is dismissed or transferred for a first breach of the Code of Ethics.
…”
84. As regards the “disciplinary decision” of Mr Owen, dated 2 March 20005, to transfer the applicant, the respondent submitted that that decision was not in breach of the ECDPP or EBA6 because the breaches of the Code of Ethics which Mr Butterworth had found to be proven in his Disciplinary Inquiry report of 21 December 2004 constituted “serious and wilful misconduct” on the part of the applicant within the meaning of Section 6.2.11 (b)(i) of the ECDPP and clause 10.2 of Attachment A to EBA6.
85. The Tribunal does not accept that submission. The phrase “serious and wilful misconduct” refers to action which in fact constitutes misconduct of a serious nature and which is performed intentionally or deliberately in the knowledge that it constitutes misconduct: see, for example, Boral Resources (Queensland) Pty Ltd v Pyke (1989) 93 ALR 89 at 115. An allegation of “serious and wilful misconduct” against an employee is, in the context of workplace relations, a very serious matter. Its seriousness is implicitly recognised in Section 6.2.10(e)(ii) of the ECDPP. The allegations against the applicant, which were the subject of the Disciplinary Inquiry conducted by Mr Butterworth, were expressed to be “allegations that [she had] breached the Australia Post Code of Ethics” (see the formal notification to the applicant of the Disciplinary Inquiry, dated 1 September 2004, referred to in paragraph 8 above). Although an allegation of a breach of the Code of Ethics necessarily constitutes an allegation of “misconduct”, it does not of itself necessarily constitute an allegation of “serious and wilful misconduct”. Given the seriousness of an allegation of “serious and wilful misconduct”, and having regard to the mental element necessarily involved therein, such an allegation must be made in express terms and sufficient particulars thereof must be provided to the employee in accordance with the requirements of natural justice (see Section 6.2.10(c), (d)(iii) of the ECDPP) before a finding of “serious and wilful misconduct” can lawfully be made by an Inquiry Officer. In the present case, Mr Butterworth found that certain alleged breaches of the Code of Ethics had been proven, but he did not make an express finding that the applicant had engaged in “serious and wilful misconduct” – quite properly, in the Tribunal’s opinion, given the absence of an express allegation of “serious and wilful misconduct” in the subject-matter of the Disciplinary Inquiry. Likewise, Mr Owen, in his “disciplinary decision” of 2 March 2005 that the applicant be transferred, did not, as a basis for that decision, expressly determine that the applicant’s workplace conduct involved “serious and wilful misconduct”. The Tribunal would add that, having regard to the evidence before it and the findings made by Mr Butterworth, it is not satisfied that the applicant’s workplace conduct was of such a nature as to constitute “serious and wilful misconduct” within the meaning of the ECDPP and EBA6.
86. The question then arises whether Mr Owen’s “disciplinary decision” to transfer the applicant was made on the basis of a “first breach of the Code of Ethics” by the applicant. If the answer to that question is in the affirmative, it will follow, in the Tribunal’s opinion, that Mr Owen’s decision to transfer the applicant was not made in accordance with Section 6.2.11(b)(i) of the ECDPP and Clause 10.2 of Attachment A to EBA6.
87. There is no dispute that the first occasion on which a breach of the Code of Ethics by the applicant was found to be proven by a Disciplinary Inquiry constituted under the ECDPP was the occasion of Mr Butterworth’s Disciplinary Inquiry Report of 21 December 2004. The question is, however, whether it had been established that the applicant had committed a breach or breaches of the Code of Ethics, for the purposes of the ECDPP and EBA6, prior to the breaches of the Code of Ethics found by Mr Butterworth to have been committed by her.
88. The ECDPP relevantly states:
“ …
6.2.1 AUSTRALIA POST CODE OF ETHICS
The minimum standard of behaviour and/or performance expected of all employees of Australia Post is set out in Australia Post’s Code of Ethics. …
The Code of Ethics is supplemented by the Australia Post Employee Counselling and Discipline Process (the Process), which is applied in cases where it is considered that an employee’s behaviour and/or performance is inconsistent with the standards in the Code of Ethics. …
6.2.2 AUSTRALIA POST EMPLOYEE COUNSELLING AND DISCIPLINE PROCESS
a)OBJECTIVE
The Employee Counselling and Discipline Process, has three (3) distinct but not necessarily sequential components namely, ongoing informal Face-to-Face Feedback, Counselling (Formal and Warning) and Discipline (Disciplinary Inquiry).
The decision as to which of the three components to initially apply will be based on the seriousness of the shortfall in the employee’s behaviour and/or performance against the standards in the Code of Ethics. That decision will depend on the facts and circumstances as identified by, or conveyed to, the employee’s manager or supervisor. Where the manager or supervisor does not identify the behaviour and/or performance issue first hand, he or she must closely question the information source in order to obtain sufficient facts to determine the seriousness of the shortfall and the appropriate intervention. The status of these facts and circumstances at the time of initiating the Process is that of allegations which will either be established or not established during the application of the Process, and in particular, after the employee has been given the opportunity to respond to the allegations.
Giving prompt informal Face-to-Face Feedback to employees about their behaviour and/or performance is an important management responsibility. Where it is established during the informal discussion that there is a minor shortfall between the required standard of behaviour and/or performance and an employee’s actual behaviour and/or performance, the feedback should be constructive, ie developed and delivered to encourage an employee to achieve and maintain behaviour and/or performance that is consistent with the Code of Ethics.
The objective of the Counselling component of the Process (ie both Formal and Warning Counselling) is to:
i)promptly draw to the attention of an employee, a more serious alleged shortfall(s) of the Code of Ethics standards; and
ii)where the behaviour and/or performance is proven during the course of the formal or Warning Counselling interview to be below those standards, to assist the employee to achieve and maintain behaviour and/or performance that is consistent with the standards in the Code of Ethics.
Accordingly, the Counselling component is primarily based on personal counselling at progressively higher levels of line management, appropriate to the seriousness of the misconduct and/or deliberate under-performance against an agreed or prescribed standard.
In the event that reasonable efforts to assist an employee to achieve and maintain the required change through Counselling is ineffective, or there is an alleged very serious breach of the Code of Ethics, a Disciplinary Inquiry will be initiated. The outcome of a Disciplinary Inquiry may lead to disciplinary action in the form of the employee’s dismissal, transfer to another position of the same or a lower level, or the imposition of a two (2) increment salary reduction for 12 months (or an equivalent penalty).
…
6.2.3OVERVIEW OF THE EMPLOYEE COUNSELLING AND DISCIPLINE PROCESS
A broad outline of the Process to be applied when a manager or supervisor considers that there is a shortfall in an employee’s behaviour and/or performance against the standards in the Code of Ethics is as follows:
a) MINOR SHORTFALL(S)
i)Giving regular personal Face-to-Face Feedback to employees about their behaviour and/or performance is an important management responsibility. All feedback needs to be constructive ie developed and delivered to encourage and recognise behaviour and/or performance that is consistent with the Code of Ethics. Where it is considered that there is a minor shortfall in an employee’s behaviour and/or performance against the standards in the Code of Ethics, the employee’s line control supervisor should promptly draw the behaviour and/or performance issue to the attention of the employee in an informal face-to-face discussion. The employee should be informed of the specific details that have given rise to the discussion and be given the opportunity to respond.
ii)If the discussion confirms that a minor shortfall has occurred, the employee should be:
· advised of the standard expected under the Code of Ethics which emphasises high performance behaviour and performance which is critical to achieving high levels of customer service and meeting the Corporation’s business requirements in a highly competitive commercial environment; and
· engaged in jointly identifying what needs to be done to achieve and maintain behaviour and/or performance which is consistent with the Code of Ethics.
…” (original emphasis)
It is clear, in the Tribunal’s opinion, that the abovementioned extracts from the ECDPP contemplate that a breach of the Code of Ethics may be proven or established, for the purposes of the ECDPP, not only at a Disciplinary Inquiry but, indeed, at the stage of any of the “components” of the Employee Counselling and Discipline Process, including the “informal Face-to-Face Feedback” component.
89. In the present case the Tribunal accepts the evidence of Mr Newnham that, in the period June 2001 – January 2004, he had spoken to the applicant on numerous occasions about her workplace behaviour, as reflected in his diary notes (T27, pp 221–222). Those diary notes include the following:
“7.06.01 Spoke to Fran regarding her attitude to … Fran said that she did not have a problem with … and that … was the one with the problem. I asked Fran why she did not talk or say hello to …, she replied ‘no reason’. Fran also said that she knows … talks about her but could give no examples. Fran also mentioned that … was a problem when emptying frames of mail. Will contact Tim Law to discuss.”
“12.06.01 Spoke to Frank regarding … and informed Fran that they would not being (sic) working in close proximity until this issue has been sorted out. Fran acknowledged the fact. Fran had not noticed any change either way.”
“3.7.01 Spoke to Fran and … regarding their behaviour towards each other. They both agreed to be polite to each other and cooperate while working together.”
“12.12.01 Spoke to Fran and … and informed them that if this behaviour continues that they both will be put on a code of ethics. All sledging and negative comments to cease.”
“15.11.02 Spoke to Fran regarding the issues on nights. Fran must take control and delegate workloads to all staff. Fran must not be seen to favour certain staff members and must alienate herself from the so called groups. Fran must treat all staff accordingly (sic).”
“1.9.03 Spoke to Fran regarding comments made to PDOs. Fran said ‘I’m not allowed to talk, they don’t like the sound of my voice’, or words to that effect. Fran did not deny this and this is an informal warning.”
The Tribunal notes that the applicant, in her oral evidence, did not dispute the accuracy of any of the abovementioned diary notes and she acknowledged that she was aware that the “informal warning” given to her by Mr Newnham on 1 September 2003 constituted disciplinary action (see paragraphs 32–34 above).
90. The Tribunal is satisfied, and finds, on the basis of Mr Newnham’s evidence, that it had been established to Mr Newnham’s satisfaction that the applicant, by reason of her behaviour in the workplace, had breached the Code of Ethics on several occasions in the period June 2001 – September 2003, as indicated, most notably, in his abovementioned diary notes of 12 December 2001, 15 November 2002 and 1 September 2003.
91. Accordingly, the Tribunal is satisfied that Mr Owen’s “disciplinary decision” of 2 March 2005 to transfer the applicant was not made on the basis of a “first breach of the Code of Ethics” by the applicant, given (as the Tribunal has found) that it had been established, for the purposes of the ECDPP, that the applicant, by reason of her workplace behaviour, had previously breached the Code of Ethics on several occasions in the period June 2001 – September 2003. The Tribunal finds, therefore, that Mr Owen’s decision to transfer the applicant did not contravene Section 6.2.11(b)(i) of the ECDPP. The Tribunal likewise finds that that decision did not contravene Clause 10.2 of Attachment A to EBA6.
92. The Tribunal is satisfied that it was in accordance with the ECDPP for Mr Butterworth, on the basis of the findings made by him in the Disciplinary Inquiry, to make a recommendation that the applicant be transferred (see Section 6.2.10(e)(iv)(a) of the ECDPP), and for Mr Owen to accept that recommendation (see Section 6.2.11(a) of the ECDPP). The Tribunal is also satisfied that Mr Owen’s decision of 2 March 2005 to transfer the applicant was valid pursuant to Clauses 10.1 and 10.2 of Attachment A to EBA 6.
93. Having regard to the abovementioned discussion and findings, the Tribunal concludes that the “disciplinary decision” of Mr Owen, dated 2 March 2005, to transfer the applicant was “reasonable disciplinary action taken against” her, within the meaning of the definition of “injury” in s 4(1) of the SRC Act.
94. As regards the consequential action whereby the applicant was “escorted off” the Nedlands Delivery Centre premises at approximately 6.00 am on 3 March 2005 in accordance with the instruction of Mr Beck, the Tribunal accepts that that action was taken against the applicant by way of implementing Mr Owen’s decision to transfer her from the Nedlands Delivery Centre, and it is satisfied that that action constituted “disciplinary action taken against” the applicant, within the meaning of the definition of “injury” in s 4(1) of the Act. The applicant submitted, however, that that action was taken at 6.00 am (that is, approximately 30 minutes before the expiration of the night shift) in full view of the night shift staff for the apparent purpose of humiliating and embarrassing her, and was accordingly unreasonable. The Tribunal notes, in this connection, that the applicant did not cross-examine Mr Beck in relation to this matter. The Tribunal is satisfied that the abovementioned action was taken pursuant to Mr Owen’s decision letter of 2 March 2005 (see paragraph 16 above) in which he referred to his decision to transfer the applicant and then stated:
“I have also arranged for you to be given paid leave for Thursday night shift [ie commencing at 11.00 pm on 3 March 2005] of this week so that you can make any necessary arrangements prior to commencing at your new location”
and that it was taken at a time close to the normal end of the night shift. The “escorting”, according to the evidence, involved the applicant’s being accompanied by an Australia Post officer (of higher grade) as she emptied her locker and left the premises, and it did not involve any physical contact. It may be that Mr Beck’s action of instructing an officer to escort the applicant off the premises was unnecessary and somewhat precipitate but, on the basis of the evidence before it, the Tribunal is not satisfied that that action was malicious, heavy-handed or otherwise unreasonable.
95. Accordingly, the Tribunal finds that:
· the Disciplinary Inquiry conducted by Mr Butterworth (including the Disciplinary Inquiry Report) in the period September–December 2004; and
· the “disciplinary decision” of Mr Owen, dated 2 March 2005, to transfer the applicant from the Nedlands Delivery Centre to the Osborne Park Delivery Centre;
each constituted “reasonable disciplinary action taken against” the applicant, within the meaning of the definition of “injury” in s 4(1) of the SRC Act. As regards the consequential action taken on the instruction of Mr Beck whereby the applicant was “escorted off” the Nedlands Delivery Centre premises at approximately 6.00 am on 3 March 2005, the Tribunal prefers not to make a positive finding that that disciplinary action was reasonable.
Finding
96. The Tribunal is satisfied, on the basis of the applicant’s evidence and the medical evidence, that the “disciplinary decision” of Mr Owen, dated 2 March 2005, to transfer the applicant from the Nedlands Delivery Centre to the Osborne Park Delivery Centre, was a significant contributing factor in her contracting the relevant mental ailment on 4 March 2005.
97. It follows that the applicant’s mental ailment (being a “disease” as defined in s 4(1) of the SRC Act) was suffered by her partly as a result of “reasonable disciplinary action taken against” her (within the meaning of the definition of “injury” in s 4(1) of the SRC Act), namely, the “disciplinary decision” of Mr Owen, dated 2 March 2005, to transfer her from the Nedlands Delivery Centre to the Osborne Park Delivery Centre, and the Tribunal so finds.
Conclusion
98. The Tribunal concludes, therefore, that the mental ailment (being a “disease”) contracted by the applicant on 4 March 2005 is not an “injury” (as defined in s 4(1) of the SRC Act), and that, accordingly, the respondent is not liable pursuant to s 14(1) of the SRC Act to pay compensation to the applicant in accordance with that Act in respect of that mental ailment.
99. Before parting with this matter, the Tribunal notes that, although it has found that the Disciplinary Inquiry conducted by Mr Butterworth and the “disciplinary decision” made by Mr Owen constituted “reasonable disciplinary action”, in its opinion the manner in which the respondent’s relevant management staff applied the Australia Post Employee Counselling and Discipline Process under the ECDPP in the applicant’s case was less than optimal. The Tribunal endorses the view expressed by Mr Connell, Chairman of the Board of Reference, in his report of 27 April 2005 regarding the applicant’s application for a review of Mr Owen’s “disciplinary decision” of 2 March 2005, as follows:
“ … there should have been documented attempts by the Corporation to specify the alleged shortcomings of the employee with the opportunity to change the alleged behaviour and a commitment to review progress prior to a decision and a sanction being decided upon by the Corporation.” (T41, p340)
Furthermore, it seems to the Tribunal (having regard to Mr Newnham’s diary notes – see paragraph 89 above) that probably by the end of 2001, and certainly by September 2003, there was, from the respondent’s perspective, more than enough evidence that “informal face-to-face feedback” had not proved to be effective as regards improving the applicant’s workplace behaviour and that it was appropriate to invoke either the “Formal Counselling” or the “Warning Counselling” component of the process. The adoption of such a course – especially the “Warning Counselling” component – would surely have been a far more effective way of impressing upon the applicant, at a relatively early stage, the seriousness with which her workplace behaviour was apparently regarded by Australia Post management and making her aware of the serious disciplinary consequences, namely, a Disciplinary Inquiry and disciplinary action including dismissal or transfer, which were likely to follow if she did not satisfactorily improve her behaviour, and may well have obviated the holding of a Disciplinary Inquiry and the subsequent taking of such disciplinary action in her case.
Decision
100. For the above reasons the Tribunal affirms the decision under review.
I certify that the 100 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr P A Staer, Member
Signed: E Jordan .....................................................................................
Associate
Dates of Hearing 18–22 August, 13, 17 November 2008
Date of Decision 28 January 2009
Representative of the Applicant Self-represented
Counsel for the Respondent Ms P Giles
Solicitor for the Respondent Sparke Helmore
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